Conflict avoidance, management and dispute resolution procedures Flashcards
How can we avoid disputes?
Risk management - identifying the causes of disputes to minimise or avoid them
Early warning signs - identifying early symptoms of problems, e.g. break down of communication, information flows diminish, increase in written notices/letters, late payment
Partnering techniques - common agreement/commitment by stakeholders to pursue mutual goals and objectives prior to commencing work on a project or instruction
Clear and robust client briefings
What is dispute resolution?
Dispute resolution is a procedure to avoid conflict between parties
What is alternative dispute resolution (ADR)?
ADR is a procedure to avoid litigation / court proceedings in instances of conflict or dispute
Name four benefits of Alternative Dispute Resolution
- Typically cheaper and quicker than litigation
- More flexible process than Court proceedings governed by the Civil Procedure Rules
- Can be a confidential process
- Specialists/experts may be involved rather than lay judges (who may or may not have an understanding of property)
What Alternative Dispute Resolution procedures are available?
- Mediation
- Conciliation
- Adjudication
- Arbitration
- Independent expert determination
What is mediation?
A confidential process where a mutual party facilitates negotiations between parties
What is conciliation?
Similar to mediation, although a conciliator must state their opinion on the dispute (whereas a mediator just facilitates the negotiation)
What is adjudication?
- The objective of adjudication is to reach fair, rapid and cost-effective decisions on disputes arising under construction contracts, usually within a 28 day timeframe.
- The appointed RICS adjudicator is a subject-matter expert with years of experience in the construction industry, who will decide on matters brought to their attention by the parties using their own specialist expertise.
- Under UK law, all disputes arising out of building contracts can be taken to adjudication, whether they relate to prompt payment issues or the quality of work done.
- Whether or not they have an adjudication clause in their contract, clients, contractors and subcontractors are all entitled to take a dispute to adjudication simply by giving notice and contacting RICS to appoint an adjudicator for them
What is arbitration?
Arbitration is governed by the Arbitration Act 1996, where a third party receives written evidence or verbal evidence at a hearing from the parties’ representatives and makes a legally binding decision.
The arbitrator has powers of discovery (i.e. disclosure of documents or calling witnesses to give evidence) and has power to award all costs.
There are limited grounds of appeal against an Arbitrator’s award and they are not liable for negligence.
What is independent expert determination?
An independent expert is appointed by the parties to give an expert opinion on the dispute.
Depending on the terms of the contract/lease, they may be required to consider evidence from the parties’ representatives, may have to give a reasoned determination and may have power to determine part/all costs.
An expert’s determination is not legally binding like an arbitrator’s award and they are liable for negligence.
What is the role of the RICS in Alternative Dispute Resolution?
RICS runs the RICS Dispute Resolution Services, which is the largest provider of ADR services.
Examples include commercial property rent reviews, construction adjudications, dilapidations disputes, mediators, neighbour dispute specialist, Professional Arbitration on Court Terms (PACT) for lease renewal, service charge disputes
The RICS also provides professional guidance on dispute resolution.
What are the official RICS timelines for complaints handling respondents?
Acknowledge within 14 days
Respond within 21 days
What is partnering or alliancing?
Alliancing involves a formal contract in which the parties undertake to act in the best interests of the project and this is a key difference from partnering where the undertaking to act in such a manner is purely voluntary.
What is the difference between arbitration and litigation?
Arbitration (Governed by Arbitration Act 1996)
- must be agreed by both parties
- parties have a wide degree of discretion as to way proceedings conducted
- form submission by parties, expert evidence, hearings and decision from Arbitrator
